June 29, 2012

D.C. Appeals Court: No Punishment for Exercising Right to Cross-Examination

In a two-page order in late May, the District of Columbia Court of Appeals reversed the sentence of a man convicted of drug possession, finding that the judge wrongfully penalized him for cross-examining a government witness. Yesterday, the court expanded on its decision, offering a strong defense of an individual's Sixth Amendment right.

"We cannot reverently repeat Wigmore’s famous dictum that cross-examination 'is beyond any doubt the greatest legal engine ever invented for the discovery of truth,' and in the next breath condemn and penalize a defendant for using that engine," Judge Stephen Glickman wrote in the
opinion (PDF), referring to early 20th-century American legal scholar John Henry Wigmore.

Following a bench trial in January, District of Columbia Superior Court Judge Jennifer Anderson found Bobby Thorne guilty of heroin possession. At sentencing, she indicated that she had taken into account the fact that Thorne's attorney insisted on cross-examining the government's chemist, even though there was no dispute about the identity of the drugs. The appeals court found that Anderson's statements were proof that she had run afoul of Thorne's constitutional rights.

Anderson, according to the opinion, told Thorne at sentencing that she would give credit to defendants who accepted responsibility for their actions, but that she couldn't do that in this case – not because Thorne hadn't pleaded guilty or showed contrition, but because of his "trial decisions," referring specifically do the cross-examination of the chemist.

The appeals court found that Anderson, and other judges, can certainly give credit to defendants who accept responsibility, but they cannot punish defendants who go to trial and then mount a vigorous defense.

"Acceptance of responsibility is shown by admitting guilt, apologizing, and trying to reform and make amends," Glickman wrote. "[I]t is not shown, nor is it disproved or undermined, by the defendant’s trial strategies and tactics or the zeal and effectiveness with which he pursues them."

The judge also found that punishing a defendant for trial decisions was a violation of his due process rights because the attorney, not the defendant, is typically the one who make strategic or tactical decisions about cross-examining witnesses.

"Imposing a punitive sentence because the judge considers defense counsel over-zealous is therefore not an appropriate exercise of sentencing discretion," Glickman wrote.

The court remanded Thorne's case for sentencing by another judge. Glickman wrote that "notwithstanding our confidence in the conscientiousness and integrity of the trial judge," resentencing by another judge would preserve the appearance, as well as the reality, of justice.

Glickman was joined in the opinion by Judge Anna Blackburne-Rigsby and Senior Judge Inez Smith Reid.

Comments

"... notwithstanding our confidence in the conscientiousness and integrity of the trial judge..." Has no one scrutinized this phrase in light of the judge's many reversals on appeal in the District of Columbia Court of Appeals and in Superior Court as witness? What is the conscientiousness and integrity of this judge, in plain language, notwithsanding?